TORONTO â€” A prominent lawyer ordered to pay the costs of a client’s legal fight says Canada’s highest court has undermined the duty of advocates to pursue their clients’ interests vigorously.
The refusal this week by the Supreme Court of Canada to hear his appeal, Paul Slansky said, runs counter to its own findings that lawyers must act diligently and without fear.
“How can you be committed to their cause when at the same time you will be punished if, at the end, you lose,” Slansky said in an interview. “That creates a significant chilling effect on lawyers who are representing their clients.”
In June last year, the Ontario Court of Appeal upheld an $84,000 costs award against Slansky, saying he had wasted money unnecessarily by “acting on unreasonable instructions from, or providing unreasonable advice to, his client.” The court also ordered him to pay $30,000 more for the costs of his failed appeal.
Slansky sought to appeal to the Supreme Court, which refused on Thursday to hear the case, and also ordered him to pay the costs of the failed application.
While professional insurance will cover the actual tab, the lawyer said the order will still hit his pocketbook in the form of higher premiums and deductibles, and unfairly damage his reputation.
Slansky said he believes he angered the establishment by suing Bay Street law firms and police forces, prompting the courts to discourage such actions with the rulings.
“This is an issue that the Supreme Court should be dealing with,” Slansky said. “In this case, there’s no allegation of bad faith, there’s no evidence of bad faith, and yet costs are being ordered against counsel who are proceeding in good faith to represent their clients’ interests.”
The situation began in 2007, when Donald Best sued 62 defendants for negligence and economic loss. The action was stayed in 2009, and Best was later found in contempt for failing to comply with court orders. In 2012, he accused the defendants and their lawyers of perjury, conspiracy, fraud, obstruction of justice and fabrication of evidence â€” accusations a judge rejected as baseless.
Best served 60 days in prison for contempt. He then engaged Slansky to appeal.
In doing so, Slansky repeated Best’s allegations of serious misconduct against his opposing lawyers. Slansky also sued 39 defendants on Best’s behalf, alleging misconduct against other lawyers, police and private investigators.
On several occasions, opposing counsel warned Slansky they would seek costs against him personally for his various legal delays and manoeuvres.
A Superior Court justice dismissed Best’s various actions a being without a “scintilla of merit,” and opined it was the most “vexatious and abusive” claim ever to come before her.
In a separate decision this week, the Supreme Court did agree to hear an appeal that deals with a lawyer’s ability to zealously defend a client. That case involves a prominent Toronto lawyer who was fined and suspended by the Ontario law society for “uncivil” behaviour.
Colin Perkel, The Canadian Press